Craig Difeo & a. v. Federal National Mortgage Association

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0151, Craig Difeo & a. v. Federal National
Mortgage Association, the court on October 26, 2015, issued the
following order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The plaintiffs, Craig Difeo and Lorrie Difeo, appeal an order of the
Superior Court (Anderson, J.) following a bench trial, ruling in favor of the
defendant, Federal National Mortgage Association, on their request to set aside
a foreclosure of their property conducted pursuant to a power of sale. See RSA
479:25 (2013). They argue that they were entitled to have the foreclosure deed
set aside because, they claim, the foreclosure sale was not “public” and, thus,
that it necessarily violated RSA 479:25 and the defendant’s obligations under
Murphy v. Financial Development Corp., 126 N.H. 536 (1985). We assume,
without deciding, that all aspects of this argument are preserved.

The trial court found, and the plaintiffs do not contest, that there was no
evidence establishing that the defendant failed to publish or properly serve
foreclosure notices in compliance with RSA 479:25. The trial court found that
the auctioneer arrived at the subject property a few minutes before the
scheduled start time of the foreclosure sale, told Lorrie Difeo and her friend,
neither of whom were going to bid, what the process would be and the price
that the defendant was seeking, and waited five-to-ten minutes after the start
time for bidders to arrive. The auctioneer did not disclose that the defendant
had authorized him to bid on the property at a range of between $250,050 and
$315,264. When no bidders arrived, the auctioneer told Ms. Difeo and her
friend that he was leaving because no one had shown up. At no point did the
auctioneer officially announce the start of the sale, read any kind of
“foreclosure script,” state that he was submitting a bid on behalf of the
defendant, or announce that the defendant had acquired the property.
Subsequently, the defendant recorded a foreclosure deed and affidavit stating
that it had acquired the property at the foreclosure sale for $250,050.

In rejecting the plaintiffs’ argument that no sale complying with RSA
479:25 had occurred, the trial court reasoned, correctly, that nothing in the
statute prescribes the specific manner or procedure by which a foreclosure sale
must be conducted. The trial court found, based upon the auctioneer’s
testimony, that the defendant had authorized him to bid $250,050 on its
behalf, and that the defendant did, in fact, sell the property upon the premises
in accordance with RSA 479:25. Although the trial court agreed with the
plaintiffs “that the process by which this sale transpired was entirely opaque,”
and that the filing of the foreclosure deed “after what appeared to be a failed
foreclosure sale could rightfully upset” them, it observed that there was no
evidence that the sale was commercially unreasonable, see Murphy, 126 N.H.
at 541, and that the plaintiffs had not established how the manner in which
the auctioneer had conducted the sale had prejudiced their rights.

As the appealing parties, the plaintiffs have the burden of demonstrating
reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our
review of the trial court’s well-reasoned order, the plaintiffs’ challenges to it, the
relevant law, and the record submitted on appeal, we conclude that the
plaintiffs have not demonstrated reversible error. See id.

In light of this order, the defendant’s request that we strike the plaintiffs’
brief and dismiss their appeal for failing to comply with Rule 16 is moot.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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